An urgent application has been made for a hearing of the Film and Publications Board's (FPB's) review board regarding the banning of the movie Of Good Report on Saturday July 27.
The film was banned last week, on the eve of its premiere at the Durban International Film Festival, on the grounds that one sequence in it could be taken, under the present law, as child porn.
Lawyers for the filmmakers are expected to argue that the FPB's classification committee was incorrect to see "child porn" in the film, that it erred in that it did not take into account the 2004 De Reuck decision of the Constitutional Court (which distinguished between material of artistic worth and mere porn), and that it failed to take into account the guidelines set in the decision of the FPB on the film XXY in 2009.
The offending sequence in Of Good Report shows the first sexual encounter between Parker Sithole, a schoolteacher, and Nolitha, the schoolgirl of 16 with whom he has an affair. This powerful story of exploitation and abuse was written and directed by filmmaker Jahmil XT Qubeka.
Under the Film and Publications Act of 1996 (amended in 2009), the FPB classifiers are required to stop watching a film the moment they see depictions of sex with someone under the age of 18. The offending scene in Of Good Report falls about 28 minutes into the film.
Last week, after the shock ruling, which raised cries or outrage from a wide range of artists, representatives of the FPB met with filmmakers at the film festival to explain the body's position.
FPB acting chief officer Sipho Ribisa said he was confident that the classifiers were correct and that the ruling would stand.
FPB chief communications officer Prince Ndamase said the problem was with the Act and not with the FPB, which was only acting in terms of the law. He said that, in the case of what the law defines as child pornography, "artistic merit … is not legally a basis for exemption". He went on to say: "This is where the problem lies. It's with the Act. It's a matter of damned if you do, damned if you don't."
Petronella Tshuma (23) who stars as Nolitha in the movie, felt the FPB's response was inadequate: "They are saying that they're with us, that they support this story, that something is wrong in this society. They acknow-ledge that, but how do they want this to be portrayed, how do they want the story to be interpreted?
"The same reason we created this story is the same reason it's been banned," she said. "It happens all the time that young girls are raped and dismembered, tortured, killed in a brutal way … the hatred from men, from these young boys, so much hate for women, that psychologically I don't understand, and that's what Jahmil was trying to portray Parker to be."
The FPB's Ndamase was faced with tough questions from the film's producer, Michael Auret, who challenged the legality of the ruling, citing previous rulings such as De Reuck. In that 2003 judgment, the late Pius Langa, then deputy chief justice, said: "Where … the aesthetic element is predominant, the image will not constitute pornography."
FPB acting chief officer Sipho Ribisa said he was confident that the classifiers were correct and the ruling would stand.
Festival director Peter Machen said that he believed the classification was unconstitutional.
Risiba said: "We are in line with the Constitution. We are not here to justify the decision. We note the attacks against us and are unfazed."
Ndamase pointed out that the Film and Publications Act is due for review in the next year, and consultations with the industry will take place to prevent controversial incidents such as this banning happening again.
He said that in previous years the FPB panel at the city's film festival was poorly attended by members of the industry: "Filmmakers did not comment on the last amendments. This is the central issue."
Ndamase suggested filmmakers should consult the Act to determine what films they are allowed to make before they make them.
The full list of FPB classifiers is available from the FPB, but the specific viewers of Of Good Report cannot be revealed because the decision is under appeal. The decision was unanimous, said the FPB, and there were four rather than the usual three classifiers. Nthabiseng May, the FPB's operations manager, pointed out that all classifiers were qualified in the fields of film, psychology and related disciplines.
Roger Young's stay in Durban was partly funded by the Durban International Film Festival